MISC 13-479686

April 9, 2014

Sands, J.

DECISION

Plaintiff Glover Court Condominium Trust (hereinafter Plaintiff) filed its Verified Complaint for Declaratory and Injunctive Relief on September 23, 2013 on behalf of the Glover Court Condominium Association and all unit owners, seeking 1) an order that Defendant Anthony Amaru (Amaru), both as Trustee of AmRon Realty Trust u/d/t dated August 13, 2003 (the Trust) and individually (hereinafter Defendants), convey certain land marked as Lot 1(Lot 1) and Lot 2 (Lot 2) on the Condominium Site Plan (as hereinafter defined) to it for parking purposes and/or to further provide access to additional land (the Annexable Land, as hereinafter defined) on which there is currently parking for residents of the Glover Court Condominium (the Condominium); 2) alternatively, judgment that Plaintiff, and any of its successors in interest, is entitled to an easement across the land of Defendants sufficient to allow safe passage by vehicle and on foot and to park; 3) a temporary injunction preventing Defendants from taking any action to inhibit, frustrate or interfere with any unit owner accessing the current driveway and/or accessing the parking lots located on Defendants land. Defendants did not file an Answer and were defaulted pursuant to Mass. R. Civ. P. 55(a) on October 28, 2013. Defendants did not appear at a case management conference on November 19, 2013, and this court issued a fifteen day Nisi order of even date. Defendants did not respond to the Nisi order and default was subsequently entered again against Defendants on December 4, 2013.

Plaintiff filed its Motion for Summary Judgment on January 8, 2014, together with Supporting Memorandum, Statement of Material Facts, Affidavit of Daniel F. Sullivan (Sullivan Affidavit) and Certificate of Service. As default had entered against Defendants, no hearing on the motion was held and the matter was taken under advisement.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Commr of Corr., 390 Mass. 419 , 422 (1983); Cmty. Natl. Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

I find that the following material facts are not in dispute:

1. The Trust acquired ownership of three (3) parcels of land on Dorchester Avenue in South Boston via deed from Ronald Luccio, Jr., dated August 14, 2003, and recorded with the Suffolk County Registry of Deeds (the Registry) in Book 32736, Page 261. The three parcels are shown as Lot A (Lot A), Lot 1 and Lot 2 on a site plan entitled Condominium Site Plan For The Glover Court Condominium Located at 534 Dorchester Avenue, South Boston, MA, dated December 28, 2004, by George Collins, PLS, which was recorded with the Registry in Book 36260, Page 286 (the Condominium Site Plan).

2. The Trust created the Condominium containing four residential units and two commercial units, by submitting a single parcel of land (a portion of Lot A) and the existing structure to the provisions of G.L. c. 183A and recording a Master Deed dated January 4, 2005, and recorded January 6, 2005 with the Registry in Book 36260, Page 286 (the Master Deed). [Note 1]

3. Section 3 of the Master Deed, entitled Description of the Land, defines the land incorporated into Phase I of the Condominium as:

[A] portion of the Land together with Buildings [the Phase I Land], more specifically described in Exhibit A1 as land area Phase I & A2 (annexable land) attached hereto and incorporated herein. The Post Office address of the Building of Phase I is 534-538 Dorchester Avenue. Until amendment of the Master Deed to include the additional phases as are set forth in Section 20 hereof, said land area as set forth in Exhibit A2, the Annexable land, is specifically excluded from the Condominium and the Common Areas and Facilities of the Condominium and the Declarant expressly reserves the right to exercise its ownership in fee thereto and further the Declarant reserves the right to determine at any time thereafter, in its sole judgment that it shall not create said additional Phases or any portions thereof, and not annex the annexable land or any portions thereof to the Condominium. The Declarant does hereby warrant that in the event it has not created the subsequent phases as set forth in Section 20, within the time specified for completion, and that the land area annexed to the completed phases does not meet applicable zoning regulations, then the Declarant shall convey additional land area from the undeveloped annexable land to the Condominium Trust as may be required to comply with the Zoning Regulations, and shall obtain any necessary zoning and/or subdivision approvals and permits as may be necessary to subdivide the land subject to this Master Deed.

4. Section 4 of the Master Deed, entitled Description of Building, states in part:

The owners of the Residential Units...have access to the Condominium land by way of Dorchester Avenue...There is a driveway to the left of the Building (if facing the building standing on Dorchester Avenue) off of Dorchester Avenue.

5. Section 6B(iii) of the Master Deed states in relevant part:

Until such time as this Master Deed may be amended, parking for the Residential Units shall be in non-assigned temporary spaces to be designated by the Declarant in the area marked Driveway on the site plan. Parking for one car for each Commercial Unit shall be designated in the area behind each Commercial Unit under the decks of the Residential Units. [Note 2][Note 3]

6. The Master Deed contained language allowing the Trust to build additional phases for a period of seven (7) years expiring on the later of January 4, 2012 or the date on which the Declarant has conveyed by recorded Unit Deed more than eighty (80) percent of the residential units . . . [Note 4]

7. The Condominium Site Plan depicts the land on which the Condominium is located (the Phase I Land) and the Annexable Land (as hereinafter defined), and two adjacent parcels of land (Lot 1 and Lot 2) retained by Defendants with the option, but not obligation, to incorporate the Annexable Land, Lot 1 and Lot 2 into the Condominium in additional phases.

8. Section 20(A) of the Master Deed contained the following language:

Notwithstanding any of the provisions herein (including Section 9) or of Chapter 183A, the Declarant, its successors and assigns, reserve the right but not the obligation, to construct and to add to the Condominium such additional land, Buildings, Units and parking spaces (or lesser part thereof) as described below, and after such additions are substantially completed, to amend this Master Deed creating subsequent Phases (including any subphase) as heretofore described. As currently contemplated, Phase II is scheduled to be completed within one year of the completion of Phase I and not more than seven years after the date hereof and Phase III is scheduled to be completed within seven years of the date hereof.

9. The Trusts right to build additional phases expired on January 4, 2012. Phase II and Phase III were not added to the Condominium.

10. When the units were being marketed for sale, Amaru was the listing agent and at least one of the residential units (Unit 2) was advertised by Defendants as having a single Off-Street, Assigned parking space.

11. At least one of the Purchase and Sale Agreements executed by Defendants (for Unit 2) contained specific language pertaining to parking and buyer was promised the exclusive right to use the parking space and storage area, if any, assigned to the unit.

12. There was no reference to specific parking in the unit deed presented in the summary judgment record (Unit 4), although the unit deed incorporated provisions of the Master Deed, including the Condominium Site Plan.

13. Pursuant to the Sullivan Affidavit, access to parking for unit owners has always been via a single curb cut along Dorchester Avenue (the Driveway). [Note 5][Note 6]

14. Pursuant to the Sullivan Affidavit, Sullivan, who is the owner of Unit 4 and a Trustee of Plaintiff, currently either parks on Lot 1 and Lot 2, or sometimes proceeds further to park on the undeveloped rear portion of Lot A, designated as Annexable Land (the Annexable Land) on the Condominium Site Plan. [Note 7]

15. In a letter to Plaintiff dated November 4, 2011, Amaru stated his decision not to add the reserved land and to construct more units to the [C]ondominium. [Note 8]

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This case concerns the ability and limitations of unit owners to park upon and pass over portions of Lot 1 and Lot 2 and the Annexable Land that were not submitted to condominium status and instead retained by Defendants with a now-expired option to develop the lots as additional phases of the Condominium. Plaintiff argues that, as the Condominium Site Plan and the Master Deed signed by Defendants referenced the availability of parking for Condominium residents on Lot 1 and Lot 2 until such time as the Master Deed was amended, and residents have used Lot 1 and Lot 2 and the Annexable Land for parking since purchasing their units, Defendants should convey Lot 1 and Lot 2 and/or the Annexable Land to Plaintiff for parking purposes and to provide access to such parking. Alternatively, Plaintiff seeks judgment that Plaintiff, and any of its successors in interest, is entitled to an easement across Lot 1 and Lot 2 and/or the Annexable Land for parking and safe access by vehicle and on foot. Defendants did not file an Answer to Plaintiffs Verified Complaint, were not present at the case management conference and were defaulted after failing to respond to a fifteen day Nisi order. As such, only Plaintiffs Verified Complaint, Memorandum in Support of Summary Judgment and evidence offered by Plaintiff are before this court.

I. Conveyance of Lot 1 and Lot 2 and the Annexable Land

Plaintiff argues that the inclusion of Lot 1 and Lot 2 and the Annexable Land the land that was retained by Defendants and purportedly not submitted to condominium statuson the Condominium Site Plan attached to the Master Deed, together with language in the Master Deed, implied that Lot 1, Lot 2 and the Annexable Land were, or should have been, included in the land to be committed to the provisions of G.L. c. 183A, and thus these parcels should be conveyed to Plaintiff as part of the Condominium. In determining the status of Lot 1, Lot 2 and the Annexable Land with respect to the Condominium, the language of the Master Deed, which should be construed as to give effect to the intent of the parties, unless inconsistent with some law or repugnant to the terms of the grant, is essential. Harrison v. Marcus, 396 Mass. 424 , 429 (1985). Without evidence that the Master Deeds language incorporated Lot 1, Lot 2 and the Annexable Land into the Condominium, the parcels remain in Defendants ownership and cannot be deemed part of the Condominium land and conveyed to Plaintiff.

Section 3 of the Master Deed signed by Defendants and entitled Description of the Land, is explicit in its separation of the Phase I Land from the Annexable Land, and states Phase I of the Condominium consists of a portion of the Land together with the Buildings, more specifically described in Exhibit A1 attached to the Master Deed as Lot A. Exhibit A1 refers to the Condominium land as:

A portion of the parcel of land in South Boston, Suffolk County, Massachusetts shown as Lot A on Subdivision Plan of Land in Boston, MA, South Boston District by Clifford E. Rober, Surveyor, dated August 6, 1993 and recorded at Suffolk County Registry of Deeds No. 18577-END with the buildings thereon and more fully described as follows: Beginning at a point on the easterly side of Dorchester Avenue, said point being the northwesterly corner of said parcel shown as Lot A on said Plan, thence running: NORTHEASTERLY 62.30 feet by land now or formerly of Armen and Viola Nalbandian to a point, thence and running SOUTHEASTERLY approximately 46.90 feet in a line parallel to Dorchester Avenue to the line of Lot B on said Plan, thence turning and running SOUTHWESTERLY 60.00 feet to the easterly sideline of Dorchester Avenue, said course being by Lot B, thence turning and running NORTHWESTERLY 47.41 by the easterly sideline of Dorchester Avenue to the point of beginning.

The Phase I Land (a portion of Lot A) was the only land shown on the Condominium Site Plan that was incorporated into the Condominium by the Master Deed, and Lot 1 and Lot 2 and the Annexable Land, where the unit owners currently park, remained outside the Condominium and in Defendants ownership, with Defendants having the option to exercise a now-expired right to develop Lot 1 and Lot 2 and the Annexable Land as part of the Condominium and incorporate those parcels into the Condominium pursuant to the statute. Cf. DiBiase Corp. v. Jacobowitz, 43 Mass. App. Ct. 361 (1997) (developer recorded a master deed for the condominium that described the premises constituting the condominium as encompassing the entire parcel of land, including the future phased land).

The depiction of Lot 1 and Lot 2 and the Annexable Land on the Condominium Site Plan does not explicitly reference these lots as part of the Condominium and does not impliedly incorporate the parcels into the Condominium. Instead, the depiction serves to illustrate the land retained by Defendants with the option, but not obligation, to develop as part of the Condominium. Neither the explicit language of the Master Deed and its attachments nor anything in the summary judgment record with respect to the parties intent suggests that the Condominium, as incorporated in the Master Deed, initially contained anything but the Phase I Land. As a result of the foregoing, I find that Lot 1 and Lot 2 and the Annexable Land are not part of Phase I of the Condominium.

II. Implied Easement Over Lot 1 and Lot 2 and the Annexable Land for Parking

In the alternative, Plaintiff argues that Plaintiff and its successors in interest should be granted an easement to park vehicles on Lot 1 and Lot 2 and the Annexable Land. Neither the Master Deed nor the unit deeds in the summary judgment record expressly reference a permanent easement over Lot 1 and Lot 2 or the Annexable Land. Additionally, Plaintiff has not met the statutory requirements for a prescriptive easement, as Plaintiff has used Lot 1 or Lot 2 and the Annexable Land continuously for nine years and not the required twenty years of continuous and uninterrupted use. G.L. c. 187, § 2 (No person shall acquire by adverse use or enjoyment a right or privilege of way or other easement from, in, upon or over the land of another, unless such use or enjoyment is continued uninterruptedly for twenty years); see Boothroyd v. Bogartz, Mass. App. Ct. 40, 44 (2007); Boston Seamans Friend Society, Inc. v. Rifkin Mgmt., Inc., 19 Mass. App. Ct. 248 , 252 (1985).

As such, Plaintiff is claiming an implied easement over Lot 1 and Lot 2 and the Annexable Land. The burden of proving an implied easement is on the party asserting it. Reagan v. Brissey, 446 Mass. 452 , 459 (2006); Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 100 , 105 (1933). An implied easement must be found in a presumed intention of the parties, to be gathered from the language of the instruments when read in the light of the circumstances attending their execution, the physical condition of the premises, and the knowledge which the parties had or with which they are chargeable. Labounty v. Vickers, 352 Mass. 337 , 344 (1967), quoting from Dale v. Bedal, 305 Mass. 102 , 103 (1940).

A. Instruments Read in Light of Circumstances

The language of the Master Deed signed by Defendants explicitly references parking. Section 6B(iii) of the Master Deed, an instrument that is subsequently mentioned in the unit deeds, provides

Until such time as this Master Deed may be amended, parking for the Residential Units shall be in non-assigned temporary spaces to be designated by the Declarant in the area marked Driveway on the site plan. Parking for one car for each Commercial Unit shall be designated in the area behind each Commercial Unit under the decks of the Residential Units.

The plain language of the Master Deed shows the intention of the parties to temporarily set aside land for the purpose of resident parking until such time as the Master Deed was amended-- potentially to include a permanent parking arrangement in the event that Lot 1 and Lot 2 or the Annexable Land were developed and incorporated into the Condominium. No such amendment relating to parking has been added to the Master Deed to date. The language of the Master Deed, when considered in light of the circumstances attending its execution, does not indicate that the document intended to create a permanent easement over Lot 1 and Lot 2 or the Annexable Land for the purpose of parking by Plaintiff. At the time of the Master Deeds execution in 2005, Defendants were planning on completing development of Lot 1, Lot 2, the Annexable Land and/or newly acquired land, and submitting the parcels as Phase II and Phase III of the Condominium within seven years of the Master Deeds execution. Unit owners were informed of these plans in Section 20(A) of the Master Deed, the Purchase and Sale Agreement and advertising for the units. However, a Master Deed executed with the intent of reserving any of the adjacent lots for possible future development could not reasonably be construed to grant a permanent easement over those lots. As such, it does not appear that the language of the Master Deed, read in light of the circumstances surrounding its execution, leads to the presumption that Defendants, in Phase I, intended to grant a permanent easement over Lot 1 and Lot 2 and the Annexable Land for parking. However, it is clear from the Master Deed that Defendants intended to grant Plaintiff a temporary easement for parking until an amendment to the Master Deed with respect to parking was executed, as discussed, infra.

B. Physical Premises

The Condominiums physical premises also cast doubt on the creation of an implied permanent easement over Lot 1 and Lot 2 and the Annexable Land at the time of the Master Deeds execution. According to the summary judgment record provided by Plaintiff, the Driveway leading from Dorchester Avenue to Lot 1 and Lot 2 also leads to the Annexable Land that Plaintiff currently uses as additional parking space. As a result, it is not clear which of the two areas was intended for the permanent parking spaces. The Master Deed references nonassigned temporary spaces and the Condominium Site Plan includes six parking spaces on Lot 1 and Lot 2; however, these parking spaces are described as being allowed only until such time as the Master Deed is amended. In light of the language of Section 6(B)(iii) of the Master Deed, it is unlikely that the Master Deed created, in Phase I, a permanent easement for the purpose of parking on land retained by Defendants. See Harrison-Beauregard v. DeNadal, 71 Mass. App. Ct. 1107 (2008). However, as Defendants demonstrated intent, through the Condominium Site Plan referenced in the Master Deed, to allow unit residents to park in the area marked Driveway on the site plan until the Master Deed was amended, it is clear that Defendants intended that Plaintiff be permitted by the terms of the Master Deed to park in such spaces marked on Lot 1 and Lot 2 of the Condominium Site Plan until such time as the Master Deed was amended with regard to parking. [Note 9]

C. Knowledge of the Parties

Defendants, who were developers of the Condominium, were also the listing agents who marketed and eventually sold the Condominiums residential units. [Note 10] In their listing advertisements, Defendants represented that the Condominium units featured onsite assigned parking. It is reasonable to infer that the availability of off-street parking was an important feature for Plaintiff and was a factor in the individual unit owners decisions to purchase Condominium units at the price offered by Defendants. See Reagan, 446 Mass. at 460 (holding that a developer intended to create implied easement rights to a park for landowners when the developers description of a subdivision with small lot sizes, though not expressly mentioning parkland, referenced gently undulating lands and pathless woods, suggest[ing] the existence of parks for the enjoyment of all lot owners). At least one of Defendants unit listings mention the availability of assigned parking for Condominium residents, but nothing in these instruments communicated that parking in a precise location was anything but temporary and nonassigned. [Note 11] At the time of the execution of the unit deeds, Plaintiff knew or was charged with the knowledge that Defendants were planning to develop Lot 1, Lot 2, the Annexable Land and/or other land to be purchased, either as two additional phases to be added into the Condominium within the period of time set out by the Master Deed, or at a later date outside the Condominium. In light of this knowledge and the Master Deeds terminology that the parking in the area referred to as the Driveway was temporary, it appears that the Master Deed contemplated residents use of Lot 1 and Lot 2 or the Annexable Land for parking until such time as the Master Deed was amended. [Note 12]

D. Reasonable Necessity

Reasonable necessity is also an important element to consider in determining whether it was the presumed intent of the parties to a deed to create an easement. Boudreau v. Coleman, 29 Mass. App. Ct. 621 , 630 (1990); see also Krinsky v. Hoffman, 326 Mass. 683 , 688 (1951). Since there was no other parking available for unit owners, and the unit owners have been using Lot 1, Lot 2 and the Annexable Land for parking since their purchase of the units, it is likely reasonably necessary for Plaintiff to have a permanent easement to park on either Lot 1, Lot 2 or the Annexable Land.

As a result of the foregoing, I find that the Master Deed did not indicate the intent of the parties to create, for Phase I, a permanent easement allowing Plaintiff to access Lot 1 and Lot 2 or the Annexable Land for purposes of parking on such lots. However, as the Master Deed, both explicitly and based on inferences from accompanying documentation, allows residents to use parking spaces on Defendants land until such time as the Master Deed is amended, I find that unit owners are permitted to park in the spaces marked on the Condominium Site Plan on Lot 1 and Lot 2 until such time as the Master Deed is amended with regard to permanent parking. [Note 13]

As a result of the foregoing, Plaintiffs Motion for Summary Judgment is DENIED in part and APPROVED in part.

Judgment to enter accordingly.

FOOTNOTES

[Note 1] Defendants division of Lot A into Phase I Land and Annexable Land is based on the lines shown on the Condominium Site Plan. However, as the Condominium Site Plan certifies that the property lines shown are lines dividing existing ownership...and that no new lines for the division of existing ownership or for new ways are shown, the Condominium Site Plan could not have created this division between the two portions of Lot A. There is nothing in the summary judgment record that indicates that Defendants subdivided Lot A pursuant to the Subdivision Control Law or received a Subdivision Approval Not Required Form (Form A). See G.L. c. 41, § 81K. Since Lot A was not subdivided at the time of the Master Deeds execution, there is an issue of whether submitting a portion of Lot A to condominium status while reserving the remaining portion of the undivided Lot A (the Annexable Land) for Defendants was a valid transfer.

[Note 2] The Condominium Site Plan as recorded with the Master Deed does not contain an area marked Driveway. However, the Condominium Site Plan does show six parking spaces located on Lot 1 and Lot 2, and Section 4 of the Master Deed references a Driveway to the left of the Condominium building.

[Note 3] The Master Deed has never been amended with regard to parking.

[Note 4] Declarant (Defendants acting as the Trust) has conveyed by recorded Unit Deed all four (100%) of the Condominiums residential units on or before October 12, 2005 and, as such, their development rights were extinguished on January 4, 2012.

[Note 5] Although an area marked Driveway is mentioned in the Master Deed, the Condominium Site Plan does not contain an area marked Driveway and the dimensions and precise location of the curb cut along Dorchester Avenue cannot be determined by viewing the Condominium Site Plan. Only the altered copy of the Condominium Site Plan attached to Plaintiffs Motion for Summary Judgment includes the location of the Driveway. However, the Condominium Site Plan does show six parking spaces located on Lot 1 and Lot 2.

[Note 6] This curb cut is called the Driveway by Plaintiff in its Verified Complaint and Motion for Summary Judgment, and is referred to as the only way to access parking on both Lot 1 and Lot 2 and the Annexable Land, as hereinafter defined. The curb cut, which will be called the Driveway, infra, refers only to the point of access to parking on Lot 1 and Lot 2 and the Annexable Land and does not purport to determine the precise location of the curb cut along Dorchester Avenue.

[Note 7] It is not apparent from the summary judgment record whether the Annexable Land used for parking is paved or whether the Annexable Land can be accessed from Glover Court, the public way behind the Condominium that is depicted on the plans attached to Plaintiffs Motion for Summary Judgment.

[Note 8] It has been represented to this court that Defendants installed a sliding chain link fence at some unspecified date and along an unspecified portion of Dorchester Avenue, but have not attempted to close the fences gate. This information was not given in verified form.

[Note 9] Section 9 of the Master Deed provides guidelines for amendment of the Master Deed and, with the exception of Defendants now-expired option to develop Lot 1 and Lot 2 and the Annexable Land and incorporate the parcels into the Condominium, requires (i) approval by vote of unit owners not entitled to less than 67% of the beneficial interest. . . or in lieu of such vote, approval in writing by at least 75% of the beneficial interests of unit owners, (ii) not less than 51% of the holders of the first mortgages on the units. . .and (iii) vote of a majority of the Trustees.

[Note 10] Amaru, in addition to his role as Trustee of the AmRon Realty Trust, was the listing agent who marketed the Condominium units.

[Note 11] The Master Deed refers to non-assigned temporary spaces whereas the real estate listing in the summary judgment record that was created by Defendants advertised off-street assigned parking.

[Note 12] This analysis is also supported by language in Section 3 of the Master Deed, which states that Defendants reserve the right to grant a perpetual easement as follows: Declarant reserves the exclusive right to grant a perpetual easement in common with the Condominium Trust to pass and repass by vehicle and on foot, in, upon, over and to the Driveway area of the Condominium to access the annexable land shown on Exhibit A2.

[Note 13] This is further borne out by cases such as Reagan, which find permanent easements based on advertising.